IN THE CASE OF:	  

		BOARD DATE:	      3 March 2011

		DOCKET NUMBER:  AR20100019095 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests enrollment of his spouse in the Survivor Benefit Plan (SBP).

2.  He states when he retired on 31 December 1991, he thought he had added his spouse to the SBP.

3.  He provides:

* a U.S. Forces Korea (USFK) Form 165 (Affidavit of Eligibility of Marriage)
* three copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DD Form 2656 (Data for Payment of Retired Personnel)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, 

has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 12 October 1972.  He continuously served though reenlistments.  He was honorably retired on
31 December 1991 and placed on the Retired List on 1 January 1992.

3.  On 24 January 1992, he completed and signed a DA Form 4240 (Data for Payment of Retired Army Personnel).  He listed his status as married.  In Part V (SBP Election) he elected coverage for dependent children only.  He listed his dependent children’s dates of birth as 5 August 1979 and 15 November 1988.  

4.  Part VII (SBP Certificates) b (Required When Married Soldier Elects Reduced Coverage or Declined Coverage for Spouse) shows the spouse's signature on
24 January 1992 acknowledging her understanding and concurrence with the decision and reflected in Part V.  This form was verified by the counselor on the same day.

5.  He also provided a DD Form 2656 he completed and signed on 15 December 2010.  He listed his status as married.  In Section IX (SBP Election) he elected coverage for spouse and children.  His dependent child's date of birth was listed as 15 November 1988 (23 years of age).

6.  On 8 February 2011, a staff member of the Defense Finance and Accounting Service (DFAS), Retired Pay, Cleveland, OH, verified that when the applicant retired on 31 December 1991 no automatic SBP spousal coverage was established.  The DA Form 4240 the applicant submitted, dated 24 January 1992, was processed by the Army at Indianapolis, IN, and SBP premiums deductions for children only started effective 1 February 1992.  This DA Form 4240 was not received by DFAS until March 1995.  The 24 January 1992 election is invalid based of the applicant's retirement date.  At that time, automatic SBP spousal coverage should have begun.  If the applicant were to enroll his spouse in SBP at this time he would have incurred a debt for SBP premiums from 1992 to the current date, a debt in the thousands of dollars.

7.  On 14 February 2011, the applicant advised a staff member of the Board that he would be unable financially to incur a debt of that amount or any amount for spousal SBP coverage.

8.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name, and are irrevocable except as provided for by law.  Children remained eligible for coverage until age 18 or 22, if a student.  If disabled before age 18, or 22 if a student, children would remain eligible to receive the SBP annuity for life.   SBP costs for child coverage stop when there is no longer an eligible child beneficiary.

9.  Public Law 105-261, enacted 17 October 1998, established an open enrollment period (1 March 1999 to 29 February 2000) for members not participating to the fullest possible extent to elect coverage if none in effect.

10.  Public Law 108-374, enacted 28 October 2004, established an open enrollment period (1 October 2005 to 30 September 2006) for members not participating to the fullest possible extent to elect coverage if none in effect.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant retired on 31 December 1991.  On 24 January 1992, he completed a DA Form 4240 electing SBP coverage for children only and his spouse concurred.  This DA Form 4240 was processed and SBP premiums for children only started being deducted from his retired pay on 1 February 1992.  On 15 December 2010, he submitted a completed DD Form 2656 electing spouse and children SBP coverage.  

2.  In February 2011, a staff member with DFAS stated the applicant's 24 January 1992 election was invalid based of the applicant's 31 December 1991 retirement date.  His spouse should have been automatically enrolled in SBP.  Nevertheless, his 24 January 1992 election became effective.  There is no evidence of record and none provided by the applicant to show he attempted to correct his SBP coverage election shortly thereafter or prior to the date of his application to the Board.  In order for the applicant to now obtain SBP coverage for his spouse, he would incur an SBP debt and owe 19 years worth of spouse premiums from the date of his retirement until the present.

3.  On 14 February 2011, the applicant advised the Board that financially he was unable to and did not want to incur an SBP debt for spousal coverage.  Unfortunately, in accordance with SBP guidance, SBP elections in effect at retirement are considered permanent and irrevocable.  While his SBP costs for child coverage stopped when the child was no longer an eligible child beneficiary, there was no automatic enrollment for his spouse at that time.

4.  Additionally, no evidence shows he sought to enroll his spouse in the SBP during an open season enrollment period.  At least two open season enrollment periods occurred since his discharge.  Based on the foregoing, there is no equitable basis to grant the applicant relief.  Unfortunately, his spouse will not be entitled to an annuity under the SBP unless he is willing to pay back premiums from 1992 to the current date or able to enroll her during a future open season, which would also incur a cost for back premiums.  Further, it would be inappropriate to forgive the debt and in essence provide free coverage.  Therefore, no relief can be granted in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100019095



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019095



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1